The Human Rights Blog of the Leitner Center for International Law and Justice

Monthly Archives: November 2015

Andrea Rosal, a political prisoner arrested for her community and human rights activism in the Philippines, was finally released from prison on Sept. 7 when the Regional Trial Court dismissed all the charges brought against her due to lack of probable cause. While in prison, she was subjected to harsh prison conditions and denied medical care. Her arrest and detention were especially problematic since she was seven months pregnant at the time of her arrest and faced two months of sub-standard conditions while carrying a baby. Her arrest and treatment while in state custody highlight the terrible detention conditions and the experiences of political prisoners in the Philippines. Since her release, Rosal has expressed a strong conviction to pursue justice for herself and other political prisoners in the Philippines. The egregiousness of Rosal’s detention exemplifies why human rights activists and defenders continue to decry the Philippine government’s policy of detaining political prisoners.

RED TAGGING OF ACTIVISTS AND HUMAN RIGHTS DEFENDERS

The Philippine police and military arrested Rosal on March 27, 2014 and charged her for kidnapping and murder. News sources suggest that the real reason Rosal was arrested was because the Philippine government tagged her as a member of the New People’s Army (NPA), the armed segment of the Communist Party of the Philippines. Red tagging is the practice of publicly labeling organizations or individual human rights defenders and activists as terrorists, communists or rebels by government actors, for the most part. Rosal is the daughter of the late Gregorio “Ka Roger” Rosal, who was the spokesperson for the Communist Party of the Philippines. Rosal’s mother may have also been a member of the NPA, and left Rosal to be raised by her relatives.

Rosal chose to live a different life from her parents and became a peasant community organizer with the Pagkakaisa at Ugnayan ng mga Magsasaka sa Laguna (PUMALAG, Unity of Farmers in Laguna). PUMALAG asserts the rights of farmers to their land and defends human rights issues of farmers, in general. Laying low was the only option for Rosal, who had been kidnapped by the government when she was just 5 years old in a ploy by the government to lure her father out of hiding. The government continues to tag Rosal because of her parents, and even before her arrest, the military had been surveilling her activities. Rosal herself believes that she was arrested solely on the suspicion that she was a member of the NPA. No charges against Rosal were filed in relation to government’s suspicion of her membership with that group.

Rosal’s arrest is an example of how the Philippine government uses red tagging to target its critics. The labeling is used to justify and legitimize human rights violations against human rights activists and defenders, including abuses like extrajudicial killings and enforced disappearances. In this case, the red tagging of Rosal resulted in her detention for a year, in difficult conditions, and the loss of a life she held dear to her.

ARREST AND INHUMANE DETENTION CONDITIONS

At the time of her arrest, Rosal was seven months pregnant. She was first detained in a small and hot cell run by the National Bureau of Investigation, the police sub-unit that had arrested her. While in jail, she complained of abdominal cramps, but was just told to fill out medical forms. She was only able to see her doctor two days later, and was prescribed hospital detention along with other procedures. Her request to be transferred to hospital detention was ignored, and she was transferred to a shared cell with 24 other female detainees. The cell was about 16 by 32 feet in size, with a window that did not allow enough fresh air or sunlight to stream in. Since Rosal’s arrest was so sudden, she was not able to bring any supplements relating to her pregnancy and had to eat prison rations that consisted of rice and a boiled fish or vegetable. Although Rosal is allergic to fish, she was neither allowed to cook her own food nor provided with alternate dining options. She also had to sleep on the floor because the bunk assigned to her was too high.

For pregnant women in detention such as Rosal, the World Health Organization (WHO) suggests that even more careful treatment needs to be contemplated. The WHO recommends that women should be imprisoned only when other alternatives are unavailable, particularly in the case of pregnant women. They also recommend that prison staff undergo gender-sensitivity training on various issues, including on adequate nutrition for pregnant detainees, breastfeeding and other types of care. Finally, the WHO emphasizes the importance of individualized health care for women. The detention conditions Rosal faced run counter to such recommendations and effectively punished her as a person held in pre-trial detention.

DEATH OF A CHILD AND A MOTHER’S GRIEF

Rosal’s experiences in detention would lead to even more tragic consequences as her case dragged on and her detention continued. On May 15, 2014, the Regional Trial Court granted Rosal’s request for hospitalization so that Rosal could deliver her baby. This request had been pending since Rosal’s doctor prescribed hospital detention two days after she was arrested. While Rosal was undergoing labor contractions, the police brought Rosal back and forth between the prison and the hospital in Manila. The police claimed that there was no available room for her. The distance Rosal traveled each time was around nine miles. She was not admitted to the hospital until May 16, 2014, a day after the court granted her request. On May 17, 2014, Rosal gave birth to her daughter, Diona Andrea Rosal. The very next day, on May 18, 2014, baby Diona died due to oxygen deficiency as a result of a lung infection (pneumonia) that had caused injury to her brain while on an artificial breathing machine. Rosal held her baby for the first time after she had already died

Dr. Beng Rivera-Reyes of the Health Alliance for Democracy suggests that prison conditions and failure to provide regular pre-natal checkups may have contributed to the baby’s health condition. In a statement to the press, KARAPATAN secretary general, Cristina Palabay said that “[The Philippine government’s] blatant disregard of the rights of Andrea, including her right to receive immediate medical care and be in an environment conducive for conceiving and delivering a healthy child, are apparent in this case.”

After the tragic death of her daughter, Rosal’s request to be temporarily released to bury her child was denied due to security reasons. Baby Diona was buried without the presence of her mother.

CONTEMPLATING CHANGE IN THE PHILIPPINE JUSTICE SYSTEM

In the shadow of Rosal’s arrest and the death of her child, criticism of the Philippine jail and justice system has been mounting. Yet these abuses continue. Another woman, Maria Miradel Torres, was red tagged and arrested while she was sick and four months pregnant. A spokesman for the Bureau of Jail Management and Penology said, “Well, the BJMP facility is really not fit for pregnant women. But we are giving them the most comfortable accommodation and we send them to nearby government hospital if necessary.” Given the experience of Andrea Rosal, human rights organizations were skeptical. Similarly, Torres was sent to a female dormitory in a city jail even though a court ordered to transfer her to a hospital. She was able to deliver her baby in the past year without complications, but is now in danger of being separated from her child.

Although she had chosen a life of quiet activism, it is no surprise then that Rosal’s recent release only strengthened her conviction to continue fighting for the rights of prisoners and political prisoners in particular. Although acquitted of all charges, Rosal’s experiences in detention and the loss she had experienced amount to unjust punishments without a conviction, which is especially problematic for a person who had the right to be presumed innocent. Moreover, the Philippines continues to detain 527 political prisoners on trumped up charges. Political prisoners are targeted by the government and robbed of their right to speak out against the government and defend human rights. Other political prisoners facing the same detention conditions risk consequences similar to those of Rosal. Activists continue to call on the Philippine government to end red-tagging and counterinsurgency campaign as a tactic to undermine critical voices. They also call on the government to observe human rights laws, particularly those standards in treaties to which the Philippines is a state party, with respect to prison conditions and the treatment of female and pregnant prisoners.

Rodrigo Bacus is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

After years of conflict and failed attempts to reach a peace agreement, there was a significant breakthrough in the latest round of negotiations, which began in 2010, between the Government of Colombia and the Revolutionary Armed Forces of Colombia (FARC), the country’s largest rebel group.

On Sept. 23, Juan Manuel Santos, the President of Colombia, and Rodrigo Londoño Echeveri, FARC’s high commander who is also known as “Timochenko,” released a joint declaration outlining an agreement on transitional justice, victims’ rights and reparations, the most contentious negotiation point of the ongoing peace process. This step brings Colombia closer to a comprehensive peace agreement, which would mean the end of one of the longest-lasting conflicts in the region.

Despite this significant progress, there have been mixed feelings about transitional justice agreement reached between the government of Colombia and FARC. On one side, people are supportive and hopeful about what a peace deal may actually bring to Colombia; but on the other side, critics of the agreement have been skeptical about the content and practical challenges of the transitional justice deal. Nonetheless, the outline is a step towards legal accountability, reparations and reconciliation. But two questions remain unanswered: will FARC comply with the final peace agreement? And will this recent breakthrough truly serve the principles of transitional justice?

TRANSITIONAL JUSTICE: TRUTH, JUSTICE, REPARATION AND NON-RECURRENCE

According to the United Nations Guidelines on Transitional Justice, transitional justice is a conglomerate of judicial and extrajudicial mechanisms that help societies come to terms with widespread rights violations. These tools serve to facilitate the prevention of future conflicts or repressive rule through the promotion peace, reconciliation and rule of law. Transitional justice seeks to understand the roots of conflict, to adopt the necessary measures to prevent new ones and to pursue accountability.

Any process of transitional justice should be carried out in accordance with the principles of truth, justice and reparation, including institutional reforms, effectively addressing the need of the victims and the reconstruction of a country’s social fabric. Furthermore, the victim’s right to know the truth should carry great weight in this process. According to the Inter-American Court of Human Rights, states have an obligation under the American Convention on Human Rights to guarantee the right to know the truth. This may entail the creation of a truth commission to preserve historical memory and ensure accountability. After all, justice can only be served and due reparations awarded if the truth is uncovered.

Recently, a new principle has emerged that was arguably already implicit in the other three principles: the principle of non-recurrence. According to the United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, a “general commitment to adhere to a right involves making efforts to ensure that its violation ceases and is not repeated.” Thus, ensuring non-recurrence should be part of a comprehensive transitional justice strategy. This may require substantial institutional transformations to prevent new recurrence of future conflicts and with them, new human rights violations. While truth, justice and reparations serve a contributive function, the guarantee of non-recurrence serves a preventive function.

Transitions take quite some time and the peace process in Colombia is a good example of this. The Colombian conflict has been ongoing for more than 60 years. Although there have been several failed attempts to reach a peace agreement, it has only been in the last few years that substantial progress has been made, and peace may finally be a reality.

THE JOINT DECLARATION ON TRANSITIONAL JUSTICE

The latest agreement on transitional justice places victims at the forefront of the peace agreement. Both parties believe that the victims should be compensated and by no means left out of the peace deal that is being negotiated. The agreement would establish a special jurisdiction for peace within Colombia’s justice system. Adopting the form of an international mixed tribunal, the jurisdiction will be integrated with Colombian and international judges in order to ensure its independence and impartiality. It will serve three main functions: 1) to end impunity for crimes committed during the conflict or in connection with the conflict; 2) to uncover the truth; and 3) to investigate, judge and sanction those responsible for the gravest crimes committed during the conflict, including those who participated directly and indirectly in the commission of gross human rights violations, regardless of whether they are FARC combatants or state agents. The sanctions system must satisfy the rights of victims, help consolidate peace and have an effective reparative and restorative effect

The special jurisdiction for peace will follow two different procedures depending on who will be tried within it. One procedure will apply to those who recognize and admit to their actions. The other procedure will apply to those individuals who would claim that they have not perpetrated any crimes, and will be subject to a full trial before the tribunal. The legal consequences will vary as well. Those who recognized and admit their actions will face a sentence between five and eight years in “special conditions” that restrict their liberty, but will not be sent to regular jail. However, those who deny their responsibility, but are found guilty, will face a sentence up to 20 years in prison.

Furthermore, amnesty will be granted for political and other related crimes. However, genocide, crimes against humanity, war crimes and other related crimes, as defined under Colombia’s national law, are not eligible for amnesty. The tribunals created under the special jurisdiction for peace will hear these cases.

Another interesting point in the joint declaration is how special treatment within the special jurisdiction for peace is regulated. Any special treatment will be afforded as long as the offender tells the truth, compensates the victims and guarantees non-recurrence.

Finally, the agreement imposes an obligation on FARC. If they want to pursue any political aim of their own in Colombia, they must lay down their arms as soon as the peace agreement is signed. If they adhere to this, FARC will be transformed into a political movement that the government will support.

CRITICISM, PROBLEMS AND CHALLENGES

Though the transitional justice agreement is a monumental step forward for peace negotiations, it is not without its own set of issues. For instance, only a 10 point outline of the agreement was publicly released. The formal agreement covering all the aspects of the new special jurisdiction, are undisclosed, unknown to the Colombian people.

The secrecy surrounding the final draft of the agreement has brought about public opposition. The Colombian Attorney General, Alejandro Ordonez, and the President of the Council of State, Luis Rafael Vergara, have called for the full disclosure of the text. To calm public dissatisfaction, Ivan Marquez, the Chief of the Peace delegation for FARC, recently stated that the agreement is a document of 75 points that includes restorative sanctions. Though this was a step in the right direction, it does not make the peace process fully transparent.

Furthermore, some fear that FARC’s potential transition from guerilla group to political party may foster impunity and social divides. Under the agreement, there will be no extraditions to the U.S., and former fighters will be allowed to run for political office. The former President of Colombia, Alvaro Uribe, now a Senator, worries that Timochenko, the leader of FARC, might be able to run for president, exacerbating social tensions and divides. Similarly, others fear that those who committed crimes may be able to hold political power and sway, an affront to the victims of abuses. According to the Joint Declaration, the possibility that the FARC may be allowed to pursue their goals through the political system will be detailed in the final peace agreement.

Another important question is whether the accountability and amnesty provisions as proposed in the agreement will deepen impunity. José Miguel Vivanco, the Director of the Americas Division at Human Rights Watch, stated that the agreement may allow those most responsible for human rights atrocities to escape accountability. By allowing those who committed human rights abuses to avoid time in prison, this agreement fails to administer proportionate punishments to the perpetrators of human rights abuses. Furthermore, the amnesty provision, which is meant to be broad, will extend to crimes connected to rebelling against the state, potentially including extortion, narco-trafficking and kidnapping. This, too, could contribute impunity and lack of justice.

CONCLUSION

The recent agreement on transitional justice constitutes a breakthrough that might close a complicated chapter in Colombian history. However, how both parties conduct their relations during the rest of the peace process and the implementation of the agreement itself will be crucial for justice to be ensured. Moreover, it remains to be seen if the final peace agreement will put a permanent end to conflict and paramilitary violence in Colombia, or if only FARC will be covered, among all the other paramilitary groups.

Camilo Sánchez, research coordinator of DeJusticia, said that this is not a perfect agreement but it is an agreement that will keep Colombia away from the perfect war. The agreement, however, must be as comprehensive as possible in terms of securing the rights of victims and holding those responsible of gross violation accountable. Only by doing this, Sánchez argues, can the two sides truly guarantee non-recurrence.

Time will tell if both sides are committed to truth, justice, reparations and non-recurrence. It is up to the public to demand a just and transparent peace process. Although peace is a complicated goal to achieve, it is a worthy one. However, peace without justice and accountability means nothing for the reconciliation process in the heart of any transitional justice paradigm.

Amaury A. Reyes-Torresis a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Five years ago, as an undergraduate student studying abroad at the American University of Beirut, I enrolled in a political science course entitled “the Arab-Israeli Conflict.” While this course was my first real engagement with this topic, exploring the issue through the lens of political science came with inherent limitations. All of the century-long tragedies, misunderstandings and bloodshed that comprise “the Arab-Israeli Conflict” were presented in a sort of constantly stale, circumscribed air of game theory and shuttle diplomacy. Barely missed peace breakthroughs were reduced to equations of narrowly expended political capital. Even the real ugly stuff—Sabra and Shatila, for example—took the form of almost inevitable strategic miscalculations and overplayed hands.

Whatever was gained in terms of a basic understanding of “the Arab-Israeli Conflict,” I always felt there was something else missing. Five years later, having just returned from the region, I find this same absence in the way people are talking about Israel/Palestine. Across the entire discourse, “the Conflict” seems to always exist in a sort of phantom academic space, lacking depth or perspective. All the statistics, the body counts, the metrics of daily oppression happen in news columns, human rights reports and policy documents. They happen on paper. That’s it. Khalas.

Paper is important, no doubt. But for anybody even casually engaged with this subject matter, it is often too easy to lose sight of any underlying reference point here, to the extent that “the Conflict” begins to exist only textually, numerically, cartographically, perhaps photographically or in breaking news video feeds. Our thinking of “the Conflict,” and subsequently the solutions we form, no longer correspond to reality. Worse, we pass on and inherit this artificial discourse: we still talk about Israel/Palestine as if it were 1967, as if the State of Israel were still a tiny fledging newcomer in the international community, as if Arab nationalism were still a thing in the region, as if the world were still divvied up in a globe-spanning Cold War. The facts accumulate, the data snowballs, but the narratives framing “the Conflict” remain totally unchanged. The world keeps talking, without ever stopping to think what, exactly, we are talking about.

FACING REALITY

This past summer, as a Leitner Summer Fellow and Legal Fellow with Palestine Works, I interned with the Al-Mustakbal Foundation for Strategic and Policy Studies (AMF) in Ramallah, the de facto capital of the West Bank. AMF is a legal think tank that seeks to pave the way for private sector initiatives to help facilitate peace and justice for Palestinians. My role at AMF was to explore the ways that decades of past fact-finding efforts may be used to design future Israeli-Palestinian reconciliation systems. But during my time in Occupied Palestine, all the nuances and complexities that I’d been taught about the issue became irrelevant, and faded from my understanding of the conflict, to the point that it seems futile to even be talking about some “Israeli-Palestinian Conflict,” even less so, some laughable notion of an “Arab-Israeli Conflict.” The academic construct we know and study—to say nothing of the even more problematic public discourse—simply does not exist. In its place, I’ve been left with something more raw and elemental, more upfront and visceral: basic occupation, through and through.

You see it in the two-hour waits at Qalandia Checkpoint, where thousands of Palestinians (those fortunate enough to have Jerusalem residence status, or those granted rare mobility permits) cross daily from the Occupied West Bank into equally Occupied East Jerusalem. In the way that parents hold their kids up on their shoulders to keep them from being crushed by the swell of humans pushing forward to enter three long and narrow shoulder-width hallway cages, moving like single-file automatons in an industrialized slaughterhouse, all metal and turnstiles and razor wire.

You see it in the streets of Hebron, deep in the West Bank, where the Arabs going about life in their streets erect nets above their shops, to catch the trash that illegal (as ruled by the International Court of Justice and a U.N. panel) Jewish settlers living in the stolen houses above nonchalantly toss out their windows. The same nets that don’t stop the urine or human excrement intentionally splashed onto the Arab streets below. These streets being the new Arab commercial center, after their last ones were deemed Jewish-only and thus inaccessible. In the way the kids get their backpacks checked at the road barricade, every day, to and from school.

You see it in what passes for justice at the Ofer Military Courts (when, for whatever reason, you’re surprisingly granted access to these military detention hearings). In the teenage Palestinian defendant who was shot three times in the leg by Israeli forces as he walked home one night, on account of sparking his lighter. He claims to have been lighting a cigarette, which the IDF presumed to be a molotov cocktail. After a preliminary investigation that produced no evidence at the scene of his shooting, the prosecutor produces a report filed hours after the incident, detailing a molotov cocktail obtained 30 meters away and conveniently destroyed onsite and hence irreproducible before the court. The kid lands an additional 18 month sentence: just long enough to complicate what remains of his high school education, as if the original bullet wounds weren’t enough.

You see it simply in talking to people, in the cafes playing backgammon or in bars drinking beer—Muslim, Christian, atheist, no matter. Your list of quotes grows, a theatre-of-horrors of aphorisms: “I just want to know what the sea feels like” (on life-long movement restrictions); or “Our government cares more about trees than people” (on the demolition of Israeli-Bedouin homes to make room for the expanding Yatir National Forest); or “When God hates a man, he makes him Palestinian” (self-explanatory).

Somehow, the daily realities that I so briefly experienced in my short 11 weeks across the West Bank and Israel get diluted and muddled out in a discourse about land swaps, statistics, political boundaries, negotiating priorities and domestic approval rates. The fallacy of allowing these sorts of issues to stand in for the entirety of “the Conflict” obstruct and deny the vast majority of circumstances that actually comprise what we’re talking about. In reality, what the world treats as a political game actually carries important and tangible human consequences, which should not be ignored.

STATISTICS, FACTS AND TRUTH

None of this is to say that statistics, fact finding, or policy formulation don’t have role to play in all this. Rather, my concern is merely how these tools are employed. Currently, the work being done in the territories remains paralyzed by a stubborn determination to achieve an unrealistic political end goal, which in turn offsets the prospect of peace.

For example, I know from my work that Israel’s separation wall appropriates 9.5 percent of the West Bank’s land area. I know that Israeli military courts in the West Bank have 99.7 percent conviction rates for whatever unfortunate creatures get rounded before them. I know that 85.2 percent of the fertile and mineral-rich Jordan Valley has been declared off-limits to Palestinians. That Israel and its settlers have diverted over 80 percent of available water from West Bank aquifers. These kinds of statistics and figures are everywhere, and I know all of this because it has been researched and documented through the hard labors of lawyers and researchers and human rights advocates, who are not paid nearly enough for the important work that they do. These sorts of numbers add color to what we think of “the Conflict.” They show us what it looks like, what we are dealing with, what kind of stakes we are talking about. But in the absence of a discourse that recognizes the human costs of these findings, the question remains: what are we actually talking about?

The term “facts on the ground” originated in the parlance of Israeli settlers, who in anticipation of Israel being forced into political concessions took it upon themselves to incrementally alter the foundational makeup of Israel/Palestine. Crudely, if you build enough rich and lush illegal Israeli settlements encircling Palestinian East Jerusalem, then the very idea of a Palestinian East Jerusalem becomes starkly unworkable from the standpoint of some final status agreement. And these guys were successful. Since the Oslo Accords, the number of illegal settlers living in the West Bank has more than doubled, from 262,500 to at least 520,000 today. Yet, while these facts on the ground have surely frustrated the peace process, I believe that they have done absolutely nothing to change our discourse about the “Conflict” or what we believe the end goal of talks should be. We envision a solution in the form of two sides willingly coming to the negotiating table, because we envision “the Conflict” as two sides locked in a century of zero-sum politicking and combat.

But such a conception of the Israeli-Palestinian Conflict is a false one. In my time over there, I never once encountered any semblance of it. It’s still by all means a military occupation, and of course there are frictions involved. But while the constantly disproportionate and asymmetrical episodes of violence are always tragic—for all parties involved—they are completely predictable products of a wholly willful and unnecessary occupation: one which implies not some adversarial struggle to be hashed out and negotiated, but rather a systematic assemblage of cruelty, in which, recent flare ups included, the daily and relentless oppression flows almost entirely one way.

CONCLUSION

This was my experience as a Leitner Summer Fellow working from Occupied Palestine: a bizarre package of disillusionment and hope bundled all into one. Until we shift our focus from solving “the Conflict” to blatantly and concretely calling for an end to the occupation, the hard work of our researchers and human rights fact-finders will remain dormant. For now, we’ve acquired a whole vocabulary and lexicon in a language that we do not yet speak. But when the discourse changes, I believe we’ll suddenly find ourselves fluent in a language that promises both action and tangible change. At which point, we’ll ironically unlock the true and horrific impact of the “facts on the ground” on the people of Palestine. I’ve no doubt that lawyers and human rights advocates will play some role in this process, but returning from my summer in Occupied Palestine, more than anything else, I’m left with the realization that this “Conflict” expired a long time ago, and that it’s time for our discussions to follow suit. Whatever we do, the survival of Palestine can no longer hinge on some idealized, long-awaited political solution to all of this. It’s time, instead, for a fresh discourse: the type that’s lessons cannot be learned from a political science course, but instead seeks both guidance and legitimacy in its struggle toward upholding basic and universal human rights.

Chris Beall was a 2015 Leitner Center Summer Fellow. He interned last summer with the Al-Mustakbal Foundation for Strategic and Policy Studies through Palestine Works in the West Bank.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

“Dr. Strangelove: Of course, the whole point of a Doomsday Machine is lost, if you keep it a secret! Why didn’t you tell the world, EH?

Ambassador de Sadesky: It was to be announced at the Party Congress on Monday. As you know, the Premier loves surprises.”

– Dr. Strangelove, 1964

Chinese President Xi Jingping’s recent visit to U.S. may be paving the way for the super powers to enter into a mutual arms control agreement in relation to cyberwarfare, the first of its kind. Considering cyberwarfare and its regulation have grave implications for freedom of expression, the right to privacy, net neutrality and security of persons, human rights advocates should keep a close eye on this development.

On Sept. 25, in a press conference, President Barack Obama and President Xi declared their governments’ mutual intent to establish greater cooperation in fighting cybercrime. They vowed to refrain in the future from harboring malicious cyberactivities targeting the other’s information and communication systems. Remarkably, the parties also declared their interest in exploring the prospect for an international code of conduct applicable to states in relation to cyberwarfare.

This comes after the world witnessed the rapid development of cyberwarfare methods in the last decades. The risks posed by cyberwarfare makes its disruptive potential perhaps only comparable to nuclear weapons. Indeed, the dependency on information and communication technologies at all levels of modern life—from the power grid to satellites, banking systems and medical facilities—makes a cyberapocalypse a scary possibility when governments are willing to spend vast resources on malicious technologies to gain the upper-hand in a wartime scenario.

“YOU SHALL NOT HACK YOUR NEIGHBOR!”

Although it is premature to talk about a conclusive agreement, the common agenda of the U.S. and China at the recent talks had three main points: (1) greater executive cooperation in information sharing; (2) a greater commitment in policing domestic perpetrators of cyberattacks and refraining from providing any support to these groups; (3) and developing an international code of conduct for states to follow in relation to the regulation of cyberwarfare.

Both countries are already on the way to creating an executive system for information sharing and mutual assistance in the investigation of cybercrimes concerning malicious activity identified by either side. Furthermore, they will establish a high-level joint dialogue mechanism with the involvement of the intelligence community, which will be charged with the monitoring and reviewing this system.

Moreover, both heads of state also declared their commitment to “making common effort to further identify and promote appropriate norms of state behavior in cyberspace within the international community,” and agreed to create a senior experts group to develop a framework with the July 2015 report of the U.N. Group of Governmental Experts in the Field of Information and Telecommunications in the Context of International security in cyberspace in mind.

The U.N. experts report reflects a multilateral understanding on certain norms, the majority of which were proposed by the U.S. Some of these include that states should not knowingly damage each other’s critical infrastructure using cyberattacks, should not target each other’s cyber-emergency responders in case of an emergency, and should assist other nations investigating cyberattacks and cybercrimes launched from their territories.

THE COSTS OF CYBER-WARFARE

In its simplest form, a cyberattack is conducted for purposes of espionage with an aim to break into someone else’s IT system, most often with an aim to retrieve trade secrets and other confidential information. Although cyber-espionage may seem to be a simpler form of cyberwarfare, its asymmetrical nature makes it particularly troublesome for an economy like that of the U.S., which relies heavily on advanced technological know-how. A single act of cyber-intrusion may result in tremendous losses in the form of leaked trade secrets and intelligence. Often, the financial impact of the attack will greatly outweigh the marginal costs necessary to facilitate such an act, which can be orchestrated by few hackers with modest resources. Furthermore, using moderate technical measures, the source of a cyberespionage attack can easily be cloaked. An important characteristic of the internet in China is that telecommunications infrastructure enabling online access routes are mostly owned by the government. This makes it essential for U.S. to gain access to the monitoring capacities of the Chinese government to be able to investigate and punish cyberattacks by Chinese individuals targeting U.S.

According to the chief of the NSA, General Keith Alexander, the loss of industrial know-how and related intellectual property through cyber-espionage constitutes the “greatest transfer of wealth in history,” as U.S. companies reportedly lose about $250 billion per year through intellectual property theft, and $338 billion due to cybercrime in general. Recently, China was also identified by the F.B.I. as the chief suspect for various cyberattacks, which exposed sensitive personal information of millions of U.S. government employees. The massive scale of the economic loss and national security vulnerability associated with cyber-espionage originating from China makes it an utmost priority for Obama administration to pull China into a fair game.

“ZERO DAY” WARFARE

Although some commentators are skeptical about whether China can be trusted to honor its commitment to refrain from state-sponsored cyber-espionage, an international regime of stability with regards to cyberspace is equally indispensable for a country like China, especially considering its ever-growing reliance on information technology systems to be able to sustain its economic development. This is where “zero day” cyberwarfare, the exploitation of unpatched software vulnerabilities that cannot be defended against, poses disturbing risks for China. Thus, China may greatly benefit from stronger cooperation with U.S. authorities and their unmatched capabilities in cyberwarfare so that it can develop state-of-the-art defense mechanisms.

A “zero day” attack is a form of cyber-sabotage that exploits a previously unknown (or undisclosed) vulnerability in a computer application. Often the developer of the application may not be aware of a “zero day” vulnerability in the software or application that he or she has designed. It is known as a “zero day” vulnerability because once the flaw becomes known and exploited, the developer of the computer application has zero days to mitigate its exploitation.

Normally, when a cybersecurity expert reveals a “zero day” vulnerability in a particular software, he or she should communicate the vulnerability to the software’s developer so that the developer can devise a method to fix the vulnerability and protect its clients from abuse. Avoid doing this, and the unfixed vulnerability will render other computers installed with the same software prone to attack from criminal hackers, corporate spies and foreign intelligence agencies, who may have obtained the knowledge of the vulnerability through other means.

A cyberattack that uses “zero day” vulnerabilities of operating systems could seamlessly take down a whole factory or nuclear plant. The most famous computer virus using “zero day” exploits was discovered in 2010, and was given the name Stuxnet. Stuxnet is believed to originate from a secret collaboration between the U.S. and Israeli governments. It was designed to damage certain nuclear facilities in Iran by infiltrating the targeted computers at the facilities in an effort to curb Iran’s nuclear enrichment activities. The virus relies on previously unknown vulnerabilities of operating systems, and can spread across a computer network without notice, infecting all the computer systems it encounters. The virus stays dormant until it reaches its target computer, at which point it can be activated to disrupt the computer’s system without revealing itself to the victim. Reports claim that the concept for Stuxnet originated from the renowned cyber-strategist General James E. Cartwright, who was the head of the U.S. Strategic Command, the agency responsible for nuclear deterrence, under the Bush Administration.

“DON’T ASK, DON’T TELL!”

Disturbingly, for a long period of time the N.S.A. followed a deliberate “nobody but us” policy restricting its officers from disclosing any “zero day” software vulnerabilities they reveal in the software they are using. Under this policy, when a NSA employee uncovers a “zero day” vulnerability on a piece of software (e.g. in the current version of Microsoft Windows), he or she has to keep the information secret in order to afford U.S. authorities a security hole in the systems of its adversaries that are using similar software. This policy has given U.S. government considerable advantage in “zero day” warfare methods.

Although the U.S.’ “nobody but us” policy may sound like an effective strategy to secure the upper hand for “offensive” purposes, it is far from convincing as a policy for maintaining “security” at home. Instead of encouraging transparency and timely dissemination of information to stakeholders in public and private industries in order to tackle technological vulnerabilities in a coordinated fashion, the NSA’s strategy relies on obscurity and informational asymmetry, rendering the national security itself open to abuse by malicious insiders or hackers.

The advances of the U.S. in “zero day” cyberwarfare do not mean that the U.S. has the sole monopoly over such tools either. In fact, Stuxnet is open source technology—meaning that currently anyone can download the source code and modify it for their own purposes.

A BEHAVIORAL EQUILIBRIUM

The current state of cyber-affairs can be compared to the intense period of nuclear armament that preceded the Limited Nuclear Test Ban Treaty, the signing of which took 18 years following the Hiroshima disaster. Perhaps we are approaching a behavioral equilibrium for super-powers in a way resembling the logic of the Cold War. Considering the mounting current costs and future risks for both China and the U.S. posed by an unregulated cyberspace with irresponsible actors, there is a large incentive for establishing rules that are internationally respected.

Cyber-attacks do not only target governments and corporations. NGOs and activists are also regular targets of such attacks. However, U.S.-China discussions thus far have failed to address such non-commercial civilian concerns. An international treaty on cyberspace may be an important first step. However, without addressing important civil issues such as free speech and net neutrality, international cyberspace law will not go far from merely representing the “policing” concerns of governments and intellectual property corporations. We must be wary of such a scenario as it will likely cause the internet to lose its truly “international” character and result in the fragmentation of internet into “fiefdoms” behind national walls.

Meric Sar is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

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The views expressed on this blog remain those of the individual authors and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School or Fordham University.

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